X. Duty: Introduction; Action vs. Inaction | Samantha Bates | April 25, 2017


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X. Duty: Introduction; Action vs. Inaction

Original Creator: Jonathan Zittrain Current Version: Samantha Bates Show/Hide

We now look at a conceptually distinct (at least most of the time) inquiry in a negligence case from that of reasonableness and the standard of care: did the defendant owe a duty to the plaintiff? This question can be asked independently of whether the defendant acted reasonably. Imagine it in this form: “Suppose all you say is true and I behaved unreasonably. You still don’t have a case.”

Why wouldn’t the plaintiff have a case? Circularly, because the defendant is said not to bear a duty to the plaintiff. The circumstances in which this is true are numerous and often unrelated. For example, a lack of duty can be found in cases of immunity, such as when the “sovereign immunity” of government is found to preclude any claims from being lodged against it.

Certain types of negligently-inflicted harm, standing alone, have traditionally been thought to be unsuitable for resolution in tort: purely emotional harm, for example, or purely economic harm. (Consider how each of the cases in the preceding section involved at least some claimed physical harm as an anchor for the case.) Further, cases in which harm is mediated through another person are also sometimes thought to fall within a no-duty rule for the upstream wrongdoer, e.g. whether a bartender should face liability for serving drinks to someone who ends up causing a car accident. These are found in the “duty” section when the identities or configuration of the parties lends itself to a policy judgment about the merits of weighing reasonableness at all.

We will examine each of these situations. But we start with yet another example of I-might-be-wrong-but-you-still-can’t-sue-me: cases in which the wrong arises from inaction rather than action. Is it possible to be held liable for just sitting around? Couch potatoes, take heart: you may not owe a duty to anyone as you unreasonably take in reality TV while pleas for help and assistance coalesce right next to you.


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    1. 1.1 Show/Hide More Moch Co. v. Rensselaer Water Co.--"The Failure to Supply Water During a Fire"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      In questions of duty, should courts draw a distinction between inaction that has the consequence of harm, and positive action that creates harm?
      The defendant water company contracts with a city to supply the city with water. While the contract was still in force, a fire broke out and spread to the plaintiff’s warehouse, destroying it and its contents. The plaintiff alleges that the destruction of his warehouse was caused by defendant’s negligence in failing provide an adequate supply of water to combat the fire, despite prompt notification of the fire, the capacity to properly supply the water, and the contractual obligation to supply water in the manner needed.
    2. 1.2 Show/Hide More Strauss v. Belle Realty Co.-- "The Man who Tripped Down the Stairs"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      If a plaintiff is harmed by a public utility's breach of contract to a third-party, should the public utility be liable?
      Plaintiff lived in an apartment managed by the defendant realty company. During a blackout caused by the defendant electric-power company, plaintiff was injured while going down stairs located in the apartment's common area. The plaintiff had a contract with the defendant power company for electricity in his apartment unit. However, power to the apartment's common areas was provided under a separate contract between the defendant power company and defendant realty company.
    3. 1.3 Show/Hide More Union Pacific Railway v. Cappier--"The Railroad that Ran Over a Man and Let Him Bleed to Death"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      Should non-negligent owners and operators of an instrumentality have a duty to assist individuals who are harmed by the instrumentality?
      Plaintiff’s son was run over by a freight car operated by the defendant, severing an arm and a leg. The collision was held to be the fault of plaintiff’s negligence alone. However, after the impact, the employees manning the car did not stop and attempt to administer any emergency care.
    1. 2.1 Show/Hide More Harper v. Herman--"The Boat Owner Who Failed to Warn"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      Does being a social host create additional duties to guests? Should an individual’s superior knowledge of a dangerous condition require him or her to disclose that danger?
      Defendant—an experienced boat owner—invited his friends on a boat outing. Plaintiff was brought along the outing by one of the invited guests. Prior to the outing, plaintiff and defendant did not know each other. The defendant took the group out to a spot where he knew the water was deep enough for swimming but too shallow for diving. After asking if the defendant was going into the water and receiving an affirmative, the plaintiff dove into the water without warning. As a result of the dive, plaintiff struck the bottom of the lake and severed his spinal cord, rendering himself a quadriplegic.
    2. 2.2 Show/Hide More Farwell v. Keaton--"The Fatal Pickup Attempt"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      Should we expect partners in a joint activity—in this case, chasing after girls—to have a duty to protect and aid each other? If someone provides aid, should courts impose a duty on the aiding party to provide a certain standard of care for the injured party?
      Plaintiff and the defendant on appeal were friends. Their attempt to approach two girls resulted in six boys chasing the pair back to the parking lot and severely beating the plaintiff. Defendant escaped unharmed, but returned later for his friend. Rather than take the plaintiff to the hospital, defendant applied ice to his head, drove him around for approximately two-hours and eventually left the plaintiff in the driveway of his grandparents’ house. Plaintiff’s grandparents discovered him the next morning and took him to the hospital. The plaintiff died three days later of an epidural hematoma (bleeding inside the skull).
    3. 2.3 Show/Hide More Randi W. v. Muroc Joint Unified School District--"The Alleged Sexual Predator's Recommenders"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      Should courts recognize a broader rule for creating a duty, capable of encompassing wrongful communications?
      Plaintiff was molested by a school administrator. The administrator had a past history of sexual misconduct. This history was known to individuals who had recommended him for the position he occupied when the incident with the plaintiff occurred. However, those individuals did not include this information in their letters. In her lawsuit, the plaintiff sued the recommenders, on the theory that it was negligent for them to withhold information which could foreseeably lead to harm.

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July 24, 2017

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Samantha Bates

Research Associate

Harvard Law School, Berkman Center

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